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Parramatta's smoking ban invalid but fight goes on

Some of the restaurateurs who took Parramatta Council to court

Some of the restaurateurs who took Parramatta Council to court

THE Land and Environment Court has ruled that Parramatta Council's ban on smoking in outdoor dining areas does not stand, in a landmark decision handed down yesterday.

Justice Peter Biscoe ruled in favour of the Parramatta Business Freedom Association in its case against the council on the validity and implementation of the policy councillors adopted on December 12 2011.

He ruled that council staff instigated a different policy to the one adopted by councillors  calling this ``remarkable'' during the hearing.

In short, on December 12, councillors adopted a November 2011 policy which did not have the definition of smoking. Officers instigating the smoking ban in April therefore over-stepped their delegation, Justice Biscoe ruled. ``In my opinion, the no smoking conditions are invalid for that reason,'' he stated.

However, the council does have the power to ban smoking in outdoor dining areas under the Local Government Act and the Roads Act, Justice Biscoe ruled.

The Association will continue to fight this point, all the way to the Supreme Court if necessary.

In the meantime, the council will put another motion before councillors in the coming weeks to define its ban on smoking in outdoor dining areas.

In granting costs to the Association, believed to be more than $50, 000, Justice Biscoe stated ``the applicants have been successful''.

But the council regards Justice Biscoe's decision a win, as he confirmed it had the right to ban smoking in footway restaurants. However, it concedes ``the court also found that the definition of smoking, listed in the approvals provided to outdoor dining premises, needed to precisely align with council's smoking in public places policy''.

``Council will now take action to implement this recommendation,'' a council spokesman said.

``This policy will not be enforced at the five businesses that initiated legal proceedings against council, until these corrective measures have been taken.''

Association spokesman Omar Besiso laughed at the council's response.

``The judge ruled that council did not exercise its power correctly it implemented a document different to the one adopted by councillors,'' Mr Besiso said.

``The judge could see that staff had modified the document and had no authority to act.''

A council spokesman said the council's intent was clear  to ban smoking on dining on council land  and it had the authority to do so.

The smoking ban came into effect on May 1, but is not being enforced until new permits are issued  at the end of the month.

Mr Besiso said the association vowed to fight any new resolution banning smoking.

``We will be organising petitions, addressing council and engaging the community,'' Mr Besiso said.

``This is not about whether smoking is safe  we don't dispute that smoking is unhealthy  but we defend the right of individuals to engage in a legal activity.''

Council's smoking in public places policy has already banned smoking in childrens playground areas and sporting fields.

In February, the state government announced that smoking will be prohibited in all outdoor dining areas in NSW from 2015.

Parramatta Council is one of 30 in NSW to vote for a smoking ban in outdoor dining areas. No other council has been challenged in court by restaurants before.

The fight for a smoking ban in Parramatta was started by Councillor Michael McDermott more than two years ago with no initial support from other councillors, until Cr McDermott was able to convince Labor councillors to back him.

The final vote, on December 2011, was unanimous.


Restaurants fight smoking ban in Parramatta

Restaurants fight smoking ban in Parramatta

RESTAURANT owners are mounting a campaign against Parramatta Council's outdoor dining smoking ban.

Smoking ban reprieve for nine restaurants

Smoking ban reprieve for nine restaurants

NINE Parramatta restaurants have been given a temporary reprieve from the smoking ban that applies from today. 26 comments

Smoking ban: restaurants vs council court case adjourned until June 7

Smoking ban: restaurants vs council court case adjourned until June 7

THE court case between restaurants and Parramatta Council over the smoking ban has been adjourned to June 7. 3 comments

Smoking ban a test case

Smoking ban a test case

RESTAURANTS fighting Parramatta Council's ban on smoking in alfresco dining areas feel they have a strong case 4 comments

Parramatta smoking debate smoulders on in Land and Environment Court

Parramatta smoking debate smoulders on in Land and Environment Court

THE fight of restaurants against Parramatta Council's ban on smoking in outdoor dining areas is now in court.

Mark writes:
Posted on 15 Aug 12 at 12:57pm

I can't believe these restaurants are rewarding the smokers with the best outdoor dining areas (on Council land, mind you) while the non smokers get second class citizen status. On top of that, these restaurants are fighting a motion by Council only up to 2015 when state legislation will steam roll them. What a joke and what a shame, I sincerely hope these restaurants eventually go out of business.

Marion writes:
Posted on 2 Jul 12 at 02:27pm

... times are a changing ... we know that smoking causes lung cancer ... we know that children suffer many health problems because of second hand smoke ... these are Council footpaths ... and Council have a duty to protect the health of it's community ... it is the restaurants forcing Council to defend itself ... not Cancer Council NSW

Lucy writes:
Posted on 28 Jun 12 at 02:36pm

I am a non-smoker, but while I like having non smoking environment to dine in, I feel that there are lots of choices for me, without forcing some businesses to lose customers by implementing a smoke ban. Seems like a lose lose situation in for parrammatta. Buisness is already so slow, why make it more difficult to run a businesses? If customers really prefer non-smoking environment, then the cafes that allow smoking will naturally have a decline in customers. No need to force the decision down their throat. But there may also be a chance that the research results are not as applicable to our local area. Our demographics are quite unique to Parrammatta.

Whatever the outcome, Parrammatta suffers. Have you considered where will council get their money from to pay court fees? Rate payers. There goes the money to improve our city which would help boost business.

I cannot believe Cancer Council is pushing this agenda. Is this where money raised from the biggest morning tea goes to?????? Please leave our neighbourhood alone. The smoke ban is taking place in 2015. In the meantime, please do not give other neighbourhoods an unfair advantage.

Aruni writes:
Posted on 25 Jun 12 at 08:21am

I stopped coming to Parramatta to dine as I was amazed at the amount of second-hand smoke we had to put up with. I wish to say a big 'thank you' to Parramatta City Council for supporting the majority of us who do not smoke and don't want to be affected by second-hand smoke. I also like to say 'well done' to those restaurants who cares for people and decided to go smoke-free.

Lisa writes:
Posted on 24 Jun 12 at 09:05pm

Good on the council - this is basically a health and safety issue. If the council isn't going to support the health of the community, who is? (obviously not the 5 restauranters!)

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